Opposition Brief — Ross v. Reda

TABLE OF CONTENTS

Page

oe ee ee

Reasons why the questions on which the de-

cision of the cause depends are so unsubstantial

as not to need further argument ==

Statement of Facts _____ OF OS eee

Permission for an out-of-state attorney to ap-

pear pro hac vice in an action pending in a state

court is a privilege, not a right - ea aan

Before a federal court can hear a habeas corpus

claim, petitioner must have exhausted his state

ee se a a wT

The rulings of a trial court, after reviewing a

defendant’s motions, are not tainted with bias

merely because they are the same in result as

those of a previous judge who was removed ___

Pursuant to Title 28 USC, Section 2254 (d), the

United States District Court is bound by a fac-

tual finding of a lower state court where such a

factual finding is relevant to a proceeding in ha-

beas corpus. The United States District Court

must apply federal constitutional principles to

relevant factual determinations in ruling upon

a petition for habeas corpus ==

SEINE pitta ee ee >

ae Oe ewan: oo tt ee ee

eR AEGIS, AD ith A AD =

12

16

17

23

24

25

ENC ey Es nye prrees

A POMC OME ©) 08

TABLE OF AUTHORITIES AND REFERENCES

Page

Albertson v. Johnson, 440 F 2d 1201 (6th Cir 1971) 13

Backer v. Commissioner of Internal Revenue

275 F 2d 141 (5th Cir. 1960) _ eee ak

Brown v. Allen, 344 US 443, 506 Laas 19

Burnham v. Brush, 1716 Misc. 39, 26 NYS 387

(1941) ; : 8

Chandler v. Fretag, 348 US 3 (1954) 7

Chase v. Robeson, 435 F 2d 1059 (7th Cir. 1970) 18, 22

Chivers v. State, 5 Ga App. 654, 63 S.E. 703 (1909) 8

Cohen v. Hurley, 366 US 117 (1961) 11

Cooper v. Hutchinson, 184 F 2d 119 (3rd Cir. 1950) 9, 10

Darr vs. Buford, 339 US 200, 204 (1950), 94 L Ed

I ee Te SI ace athe h oteenctices Clee 13, 14

Davis v. Burke, 179 US 299 (1900) saicw 14

Dombrowski v. Johnson, 488 F 2d 68 (6th Cir 1973) 13

Ex parte Royall, 29 L Ed at 871 _.-._ -___- 14

Fay v. Dola, 372 US 301 (1963) __....--..------. 13

Glasser v. United States, 315 US 60 (1942) 7

In Re Mandell, 69 F 2d 830 (2d Cir: 1934) 7

In Re Stolar, 401 US 23 (1971) PS et 8

Irvin v. Dowd, 359 US 394 (1959) i ; 13

Kerling v. G. W. VanDusen & Co., 109 Minn 481,

124 N.W. 235 (1910) ae 8

ii

Lefton v. City of Hattiesburg, 333 F 2d 280

(5th Cir. 1964) - RP et Be EE CAI ee Cn a

Macon v. Lask, 458 F 2d 942 (7th Cir 1972) __

Matthews v. Wingo (1973 CA 6 Ky), 474 F 2d 1266,

cert. denied 411 US 985, 36 LE 2d 963, 93 SCt

2283 eA GA et i fe es ae

Minaffe v. Estelle, 491 F 2d 1096 (5th Cir 1974) ___

National Association for the Advancement of

Colored People v. Button, 371 US 415 (1963)

Nelson v. George, 399 US 224, 229 (1970)

Nelson v. Moore, 470 F 2d 1192 (1st Cir 1972)

Parker v, Parker, 97 So. 2d 136 (DCt set Fla.

1957)

People of the State of New York v. Epton,

248 F Supp 2d 276 (S.D.N.Y. 1965)

People v. Crovedi, 53 Cal. mh 284, 417 P 2d 868

(1966) . Sections Ab bee cal tam ne OU alt

People v. Price, 262 N.Y. 410, 187 N.E. 298 (1933).

People v. Shiffman, 350 Ill. 243, 182 N.E. 760 (1932)

Picard v. Connor, 404 US 270 (1971) _..--

Powell v. Alabama, 287 US 45 (1932) _.- =

Ramirez v. Rodriguez, 467 F 2d 822 (10th Cir 1972)

Reynolds v. Cochran, 363 US 801, 363 US 24 (1960)

Richardson v. State, 288 S.W. 2d 500 (Tex.

App. 1956) tin eer Ce eal

Sanders v. Russell, 401 F 2d 251 (5th Cir. 1968) _-

Saunders v. Cox, 470 F 2d 734 (4th Cir 1972) ___-

iii

11

11

14

16

16

eS

Schware v. Board of Bar Examiners, 353 US 232

(CS RES Ease nnone O50 na Ae Me A

Sheppard v. Maxwell, (1966) 384 US 333 -

Smith v. United States, 288 F 259 (D.C. Cir. 1923)

Smith v. Wolff, 506 F 2d 556 (8th Cir 1974) .

Spanos v. Skouras Theatres Corp., 363 F 2d 161 (2d

Cir. (1966), cert. denied 385 US 987 (1966)

State v .Kavanaugh, 52 N.J. 7, 243 A 2d 225 (1968)

State v. Long, 19 Ga App. 82, 166 S.E. 365 (1969)

Thomas v. Cassidy, 249 F 2d 91 (4th Cir. 1957)

Tumey v. Ohio, 273 US 510 (1927)

United States v. Bergamo, 154 F 2d 31 (3rd Cir.

1946) sys:

United States ex rel Hayward v. Johnson, 508 F 2d

322, (3rd Cir 1975)

United States v. Seale, 461 F 2d 345 (7th Cir. 1972)

United States v. Zelker, 496 F 2d 991 (2nd Cir 1974)

Walker v. State, 194 Ga. 727, 22 S.E. 2d 462 (1942)

Williams v. Hocker, 463 F 2d 234 (9th Cir 1972)

ARTICLES

Canon 7, Code of Professional Responsibility 19, 20,

Retaining Out-of-State Counsel: The Evolution of a

Federal Right, 67 Col. L. Rev. 731 (1967)

STATUTES

Title 28 USC Section 2254 ek 12,

iv

IN THE

Supreme Court of the United States

October Term, 1975

No. 75-63

CHARLES O. ROSS,

Petitioner,

v.

HONORABLE FRANK REDA,

Judge, Franklin County Municipal Court,

Respondent.

APPEAL FROM THE UNITED STATES COURT

OF APPEALS FOR THE SIXTH CIRCUIT

A. BRIEF IN OPPOSITION

Pursuant to Rule 24 of this court, respondent moves

this court to deny the petition for certiorari to the

Court of Appeals for the Sixth Circuit, on the ground

that it is manifest that the questions on which the deci-

sion for the cause depends are so unsubstantial as to

need no further argument.

B. REASONS WHY THE QUESTIONS ON

WHICH THE DECISION OF THE CAUSE

DEPENDS ARE SO UNSUBSTANTIAL AS

NOT TO NEED FURTHER ARGUMENT.

1. Permission for an out-of-state attorney to appear pro

hac vice in an action pending in a state court is a

privilege, not a right.

PETMAN He

2

2. Before a federal court can hear a habeas corpus claim,

petitioner must have exhausted his state remedies.

3. The rulings of a trial court, after reviewing a de-

fendant’s motions, are not tainted with bias merely

because they are the same in result as those of a

previous judge who was removed.

4. Pursuant to Title 28 USC, Section 2254 (b), a United

States District Court is bound by a factual finding of

a lower state court where such factual finding is rele-

vant to a proceeding in habeas corpus. A United

States District Court must apply federal constitu-

tional principles to relevant factual determinations

in ruling upon a petition for habeas corpus.

C. STATEMENT OF FACTS

On May 25, 1971, there were many agitating students

and outsiders in Linden McKinley High School, a Colum-

bus city school (T.R. 141). There was a complete break-

down of order (T.R. 142), resulting in an emergency situ-

ation (T.R. 153). Petitioner-appellant, hereinafter re-

ferred to as the petitioner, was in the school during this

breakdown of order. In an effort to return order to the

school it was decided to order the outsiders to leave the

buildings. A principal at the school, Mr. Reed, made an

announcement over the public address notifying all out-

siders to leave the building and premises (T.R. 148).

After the announcement, the petitioner walked up to

James J. Hughes, Jr., the City Safety Director, and

stated: “Hughes, you started a riot here,” Mr. Hughes,

who was working with police and school personnel try-

ing to calm the situation, turned his back to the peti-

tioner and walked over to talk with a Columbus police

officer, Major Smith (T.R. 149). The petitioner then

3

planted himself between Mr. Hughes and Major Smith

so that they could not carry on a discussion. At that

time, Mr. Hughes turned to Mr. Ross and said to him,

“You have been ordered by the principal to leave the

school.” (T.R. 151). The petitioner then began a long

harangue speech concerning his rights and stated he

would not leave. At that time, Mr. Hughes told the

petitioner, “You know the principal has ordered you out.

Now, I’m ordering you out. You are to leave the build-

ing or you are going to be arrested for trespassing and

failure to depart.” (T.R. 151). The petitioner then re-

sumed his speech concerning his rights, ending with the

statement, “You can’t make me leave.” (T.R. 151). Mr.

Hughes then stated, “you’ve got two minutes to get out

of here or you’re going to be arrested.” The petitioner

stated that he would not leave and began his speech

again. He was removed from the building by two uni-

formed officers, and in turn transported to the Columbus

Police Station.

While at the police station, the petitioner assaulted

Richard Dimel while Mr. Dimel was attempting to take

the petitioner’s fingerprints. The petitioner accomplished

this assault by balling up his fist, and stepping back to

strike Mr. Dimel. (T.R. 171).

The petitioner was represented by several attorneys

during the case. Bruce Campbell and William Boyland

who initially appeared on behalf of the petitioner were

later joined by Raymond Twohig. William Kunstler,

who is not admitted to practice in Ohio, applied to the

court for permission to represent the petitioner, which

was denied. While in court asking for permission to ap-

pear pro hac vice, Mr. Kunstler refused to be seated

when instructed to do so by the court. After repeated

requests, Mr. Kunstler did sit down, saying he was doing

4

this not out of any respect for the court, but only because

the court had the power to force him to sit down.

After the initial refusal to admit Kunstler by Judge

Gervias Fais, Mr. Kunstler made the following statement

concerning the refusal at a rally for the petitioner in

front of the Columbus City Hall:

Judge Fais wouldn’t let Mr. Ross have a courtroom:

he wouldn’t let Mr. Ross have a lawyer—You know

what I say to Judge Fais, fuck him!

During a hearing on a motion to admit Mr. Kunstler

pro hac vice, Mr. Kunstler informed the trial judge,

Judge Reda, that:

“I would never promise Your Honor that I would

not speak outside. I will speak outside, because |

think to bind me would be unconstitutional and

would make attorneys have different First Amend-

ment rights than anybody else. . .”

The trial judge for this case, Judge Frank A. Reda,

reviewed all of the motions that had been filed on behalf

of petitioner by his attorneys, Campbell, Boyland and

Twohig. Judge Reda stated that he concurred with the

prior decisions in the case, and therefore, did not dis-

turb them. (T.R. 6).

On the day of trial, the petitioner told Judge Reda

that he had discharged Mr. Campbell, Mr. Boyland and

Mr. Twohig, and asked that the case be continued. J udge

Reda then changed his ruling on the motion filed by the

petitioner to be his own counsel in this case; permitting

the petitioner to represent himself.

During the trial, Mr. Twohig was in the court room

(T.R. 154), conferred with the petitioner at every recess

(T.R. 159), and passed notes to the petitioner through the

petitioner’s wife. Mr. Twohig remained the petitioner’s

5

attorney throughout the trial despite petitioner’s initial

Statement that the attorney had been discharged. Mr.

Twohig filed papers for the petitioner in a federal court

in Cincinnati (T.R. 178). When asked by Judge Reda

during the trial who his attorney was in the federal case,

the petitioner replied that Mr. Twohig was representing

him (T.R. 180).

After the proceedings in the Franklin County Munici-

pal Court, the case was appealed to the Franklin County

Court of Appeals. That court issued a decision that Mr.

Kunstler’s response to Judge Reda that he would never

promise not to speak outside the court room amounted to

a refusal on his part to abide by Canon 7 of the Rules of

Ethics adopted by the Supreme Court of Ohio. The

Court of Appeals affirmed the lower court proceedings.

The case was next appealed to the Ohio Supreme

Court. The Supreme Court refused to accept jurisdiction

of the case.

The case was then appealed to the United States Su-

preme Court. The United States Supreme Court refused

to grant certiorari in the case, and the case was returned

to the Franklin County Municipal Court for execution

of the sentence.

Prior to the execution of the sentence a petition for

a writ of habeas corpus was filed in the United States

District Court for the Southern District of Ohio, Eastern

Division. The United States District Court judge denied

the petition for a writ of habeas corpus based in part on

his acceptance of factual determinations by the state

courts which had previously made determinations in

this matter.

The Sixth Circuit Court of Appeals affirmed the judg-

ment of the United States District Court.

6

D. PERMISSION FOR AN OUT-OF-STATE

ATTORNEY TO APPEAR PRO HAC VICE IN AN

ACTION PENDING IN A STATE COURT IS

A PRIVILEGE, NOT A RIGHT.

Petitioner argues that he has a right emanating from

the Sixth Amendment to the United States Constitution

to be represented by an attorney not admitted to practice

in Ohio if that attorney is the representative of his

choice. He argues that such a rule is appropriate in his

case because he is asserting general constitutional claims

which require for their vindication the skills of a “politi-

cal trial specialist.” Petitioner is arguing, in effect, that

whenever a federal! constitutional claim is asserted which

the petitioner wishes to characterize as “political”, his

choice of counsel must supersede any local interest in

regulating the practice of law by out-of-state attorneys.

The petitioner’s contention is legally unsound for two

reasons. First, no count, either federal or state, has ever

interpreted the scope of the right to counsel in state

courts this broadly; in fact, the United States Supreme

Court has consistently denied certiorari in cases present-

ing the same question as is raised by petitioner in this

matter. Second, the effect of accepting petitioner’s argu-

ment would be to shift the discretion to limit appear-

ances by out-of-state counsel which is now vested in state

courts to the defendants who are being tried in those

courts.

The claim of petitioner that his out-of-state attorney

was necessary to present his so-called “political’’ defense

is particularly bizarre in view of a motion which was

signed by the petitioner requesting that he be permitted

to act as his own counsel during the trial because:

stm bo *

“3. A critical part of Professor Ross’ case is an

examination of the political motivations of some

7

prosecution witnesses in order to establish their lack

of credibility.

“4. The direct opposition of those motivations to

the political philosophies of Professor Ross was the

direct cause of his arrest.

“5. This inquiry into political motives requires that

counsel has the fullest and most direct comprehen-

sion of Professor Ross’ political philosophy, past ac-

tivities and the reports of these activities.

‘6. Attorneys for Professor Ross confess their in-

ability to fully and adequately conduct that inquiry,

and represent that Professor Ross is best qualified

to do so.

* * *>?

(Court of Appeals decision—Page 638.)

The foregoing application was signed by Mr. Kunstler,

thus representing to the court that Mr. Kunstler was un-

able to present the delicate political questions that peti-

tioner now claims were involved in the case. During the

trial, the trial judge ruled on the motion to permit the

petitioner to represent himself during the trial; this rul-

ing was to the effect that petitioner could represent him-

self during the trial. Sigmificantly, petitioner raised no

questions during the trial in any area. Now, petitioner

represents to this court that he was unsuited to conduct

his defense, and his defense could only have been suc-

cessfully presented by a so-called “political trial special-

ist.”

Petitioner filled the pages of his brief with many cases

having no application to the proposition he presents.

Among those cases are the following: In Re Mandell, 69

F 2d 830 (2d Cir. 1934); Powell v. Alabama, 287 US 45

(1932); Glasser v. United States, 315 US 60 (1942): Peo-

ple v. Price, 262 NY 410, 187 N.E. 298 (1933); State v.

Long, 19 Ga. App. 82, 166 S. E. 2d 365 (1969); Backer

v. Commissioner of Internal Revenue, 275 F 2d 141 (5th

Cir. 1960); Reynolds v. Cochran, 363 U.S. 801, and 363

U.S. 824 (1960); misc. orders; Chandler v. Fretag, 348

U.S. 3 (1954); Smith v. United States, 288 F 2d 259

8

(D.C. Cir. 1923); Walker v. State, 194 Ga. 727, 22 S.E.

2d 462 (1942); People v. Shiffman, 350 Ill. 243, 182 N.E.

760 (1932); Richardson v. State, 288 S.W. 2d 500 (Tex.

App. 1956); Kerling v.G. W. VanDusen & Co., 109 Minn.

481, 124 N.W. 235 (1910); Burnham v. Brush, 176 Misc.

29, 26 N.Y.S. 2d 397 (1941); People v. Crovedi, 53 Cal.

Rptr. 284, 417 P 2d 868 (1966); Chivers v. State, 5 Ga.

App. 654, 63 S.E. 703 (1909). None of these cases raises

the question of whether the scope of petitioner’s right

to counsel includes the right to choose an attorney not

authorized to practice in the courts of the state where

the defendant is being tried. Thus, these cases do not

apply to the question at bar.

Petitioner argues that the case of United States v.

Seale, 471 F 2d 345 (7th Cir. 1972), should apply here.

In that case the defendant was being tried in a federal

court. Lead counsel was unavailable because of illness,

and the presiding judge ordered the trial to proceed

without him. The question of counsel’s out-of-district

status was never raised in that case. Moreover, the 7th

Circuit did not raise defendant’s choice of counsel to the

level of unequivocal right, but merely stated that it “de-

serves consideration”. 461 F 2d 345, 358.

The broad question of whether states are “entirely free

to regulate the practice of law in any way they see fit,”

is not disputed here. Respondent fully concurs with the

authorities petitioner cites in his discussion of this

proposition. In Re Stolar, 401 U.S. 23 (1971); Schware

v. Board of Bar Examiners, 353 U.S. 232 (1957); Na-

tional Association for the Advancement of Colored Peo-

ple v. Button, 371 U.S. 451 (1963).

Some cases cited by petitioner do involve disputes over

an appearance by out-of-state counsel; however, these

cases are factually and legally distinguishable from the

ESE EMIS NOE OTE RE ET LO OI: TPIS TT TTS Be BAM He hah GP Me SO RIMES

9

case at bar. The case of Lefton v. City of Hattiesburg,

333 F 2d 280 (5th Cir. 1964), involved the removal of

certain civil rights prosecutions from a state court in

Mississippi to a federal district court. The court con-

cluded that a local rule requiring that removal petitions

be signed by a member of the local bar should be waived,

or admission granted pro hac vice, where local counsel

could not be obtained. The court’s decision turned on

the unavailability of local counsel, a problem which was

not encountered in the present case. The case of

Sanders v. Russell, 401 F 2d 241 (5th Cir. 1968), was also

a case brought under federal civil rights laws in a federal

court. The 5th Circuit in a decision, which relies heavily

on their decision in Lefton, supra, expressly distin-

guished their holding in that case from situations like

the one presented here:

The petitioners’ position is simply that they have

a federal right to retain counsel of their choice who

are attorneys in good standing at their respective

bars and are associated with locally-admitted coun-

sel in non-fee generating school desegregation cases

in federal court. ... This case does not involve the

right to practice in state court. 401 F 2d 241, 244.

The case of United States v. Bergamo, 154 F 2d 31

(3rd Cir. 1946), also involved an action in federal court.

That court stated that it was not deciding the issue

of whether out-of-district counsel may be required to

associate a local member of the bar. It seems fair to

infer from that language that the court was also not

deciding whether defendants in state courts had a right

to retain out-of-state counsel. In addition, the Bergamo

holding was expressly limited to federal courts by the

case of Cooper v. Hutchinson, 184 F 2d 119, 122 (3rd

Cir. 1950).

-

10

The case of Spanos vs. Skouras Theatres Corp., 364 F

2d 161 (2d Cir. 1966), cert. denied 385 U.S. 987 (1966),

was a Civil suit instituted in federal court by an out-of-

state attorney against a client for whom he had rendered

his services over a period of five years as an anti-trust

specialist. This case, which was decided under the privi-

leges and immunities clause and not the Sixth Amend-

ment, held that a contract for the out-of-state attorney’s

services was not unenforceable as an illegal bargain. Be-

cause the court tied its holding to the assertion of a fed-

eral claim, petitioner contends that a right to retain out-

of-state counsel exists whenever a federal claim is as-

serted. This interpretation has been criticized:

“So applied the court’s decision could be utilized to

invalidate any state rule of practice, the enforce-

ment of which might hinder or prevent the vindica-

tion of a federally created right. With no narrower

criterion than the ‘necessary and appropriate’ stan-

dard of Spanos, statutes of limitations, local pleading

and discovery rules, or requirements of security for

costs, could fall whenever a federal cause of action

is asserted.” Note, Retaining Out-of-State Counsel:

The Evolution of a Federal Right, 67 Colum. L. Rev.

731, 744 (1967).

Cooper v. Hutchinson, supra, deals with out-of-state

counsel in a state court. Cooper was a capital case where

out-of-state counsel was granted admission pro hac vice,

participated at length in the proceedings, and then

was dismissed without cause. The court clearly recog-

nized that the initial decision to admit an out-of-state

attorney is “to be in the sound discretion of the court”,

but held that once he is so admitted, he cannot be dis-

qualified from that particular case, except upon a show-

ing of substantial cause. 184 F 2d 119, 723. Petitioner

asserts that his representation by Mr. Kunstler in sev-

11

eral previous proceedings justified applying the Cooper

holding to this case. Such an interpretation is illogical

because it was the initial decision to admit counsel and

his familiarity with the particular case which triggered

defendant’s Sixth Amendment right in Cooper. More-

over, the Cooper court described as “startling” the sug-

gestion that the courts of the states are bound to permit

out-of-state attorneys to practice before them. 184 F 2d

119, 122.

Numerous authorities have held that permission to re-

tain an attorney not admitted to practice in a jurisdiction

is not a right but a privilege.

It is well settled that permission to a nonresident

attorney, who has not been admitted to practice in a

court, to appear pro hac vice in a case there pending

is not a right but a privilege, the granting of which

is a matter of grace resting in the sound discretion

of the presiding judge. Thomas v. Cassidy, 249 F 2d

91, 92 (4th Cir. 1957), cert. denied 355 U.S. 958

(1958).

The court in Thomas, which felt the question merited

no more than a per curiam opinion, expressed “grave

doubt” as to whether der’+] of the privilege to appear

pro hac vice was even reviewable. See People of the

State of New York v. Epton, 248 F. Supp. 276 (S.D.N.Y.

1965); Parker v. Parker, 97 So. 2d 136 (Dist. Ct. App.

Fla. 1957).

The Supreme Court of the United States has never

dealt with the specific question presented here except to

deny certiorari, but has recognized that the control of

the practice of law is vested in the courts of each jurisdic-

tion. Cohen v. Hurley, 366 U.S. 117, 123-124 (1961). Re-

lying partly upon the Cohen decision, the Supreme Court

of New Jersey decided a question virtually identical to

12

the case at bar. That court held that no constitutional

right to select an attorney who was not a member of the

New Jersey bar exists as long as there is a member of the

local bar who is “able, willing and free to provide effec-

tive counsel’. State v. Kavanaugh, 52 N.J. 7, 18, 243 A.

2d 225 (1968), cert. denied 393 U.S. 924 (1968).

The question of representation by an out-of-state at-

torney in a state court as being subject to the discretion

of the bar of that state has been raised before the Su-

preme Court of the United States in the past, and the

court has consistently refused to hear such cases. Con-

sistent with the foregoing, when the instant case ap-

peared before the United States Supreme Court, the

United States Supreme Court refused to grant certiorari.

E. BEFORE A FEDERAL COURT CAN HEAR A

HABEAS CORPUS CLAIM, PETITIONER MUST

HAVE EXHAUSTED HIS STATE REMEDIES.

One page 4. of his petition for writ of certiorari, peti-

tioner in his questions presented for review raises two

questions not heretofore raised at any level in his ap-

peals. Questions 2. and 3. present new and novel argu-

ments that were definitely not raised in state court pro-

ceedings in the prior appeals from the Ohio Court of

Appeals and the Ohio Supreme Court which subsequently

reached this court in a prior case, which was Case No.

A-554.

28 USC, Section 2254 (1973), provides in relevant part:

2254. State custody-Remedies in Federal courts-(a)

The Supreme Court, a Justice thereof, a circuit

judge, or a district court shall entertain an applica-

tion for a writ of habeas corpus in behalf of a person

in custody pursuant to the judgment of a State

court only on the ground that he is in custody of

a etl a tne

13

violation of the Constitution or laws or treaties of

the United States.

(b) An application for a writ of habeas corpus in

behalf of a person in custody pursuant to the judg-

ment of a State court shall not be granted unless it

appears that the applicant has exhausted the rem-

edies available in the courts of the State, or that

there is either an absence of available State correc-

tive process or the existence of circumstances render-

ing such process ineffective to protect the rights of

the prisoner.

(c) An applicant shall not be deemed to have ex-

hausted the remedies available in the courts of the

State, within the meaning of this section, if he has

the right under the law of the State to raise, by any

available procedure, the question presented.

(Emphasis Added.) Accordingly, the case law has un-

animously held that “it would be unseemly in our dual

system of government for a federal district court to upset

a state court conviction without an opportunity of the

state courts to correct a constitutional violation.” Darr v.

Buford, 339 U.S. 200, 204 (1950) [overruled in other re-

spects, Fay v. Doia, 372 U.S. 391, 435-36 (1963)]. See

also, Nelson v. George, 399 U.S. 224, 229 (1970); Irvin v.

Dowd, 359 U.S. 394, 404-05, (1959); Dombrowski v. John-

son, 488 F. 2d 68 (6th Cir. 1973); Albertson v. Johnson,

440 F. 2d 1201 (6th Cir 1971). Indeed $2254 merely

reflects a policy of federal-state comity. See Fay v. Doia,

supra, 372 U.S. at 419-20.

In relation to the present case, the exhaustion require-

ment means not only that petitioner must have attempted

vindication of some claims relating to his conviction in

state court, but that the precise claims presented on

habeas corpus have been passed upon by a state appellate

body. This is the precise conclusion of the Supreme Court

14

in the 8-1 holding of Picard v. Connor, 404 U.S. 270

(1971).

In Picard, a state prisoner sought reversal of his con-

viction in state court on the ground that the procedures

used to amend the indictment by which he was prosecuted

were not in compliance with state law. Moreover, on

federal habeas corpus, petitioner appended the new argu-

rnent that such procedure also denied him equal protec-

tion of the laws under the fourteenth amendment. The

Supreme Court held that he had not exhausted his state

remedies because the state court had not had an oppor-

tunity to hear the federal claim:

We emphasize that the federal claim must be

fairly presented to the state courts. If the exhaustion

doctrine is to prevent “unnecessary conflict between

courts equally bound to guard and protect rights

secured by the Constitution,” Ex parte Royall, supra,

at 251, 29 L Ed 871, it is not sufficient merely that

the federal habeas applicant has been through the

state courts. The rule would serve no purpose if it

could be satisfied by raising one claim in the state

courts and another in the federal courts. Only if the

state courts have had the first opportunity to hear

the claim sought to be vindicated in a federal habeas

proceeding does it make sense to speak of the exhaus-

tion of state remedies. According, we have required

a state prisoner to present the state courts with the

same claim he urges upon the federal courts. See

Darr v Burford, supra, at 203, 94 L Ed at 766; Davis

v Burke, 179 US 399, 401-403, 45 L Ed 249, 250, 251.

21S Ct 210 (1900).

* % we ie

We are thus unable to agree with that court that

respondent provided the Massachusetts “court with

‘an opportunity to apply controlling legal principles

to the facts bearing upon [his] constitutional claim.’ ”

434 F2d, at 674. To be sure, respondent presented all

Pat rn

a pepe ae

15

the facts. Yet the constitutional claim the Court of

Appeals found inherent in those facts was never

brought to the attention of the state courts. The Su-

preme Judicial Court dealt with the arguments re-

spondent offered; we cannot fault that court for fail-

ing also to consider sua sponte whether the indict-

ment procedure denied respondent equal protection

of the laws.

404 U.S. at 275-77. (emphasis added).

Conceivably, the present situation presents a much

stronger basis for the application of this rule, for in

Picard the petitioner, at the state level, did make aclaim -

that at least “resembled” the equal protection grounds

sought on habeas corpus. Mr. Justice Doublas, in his dis-

sent, stressed this particular factor:

He raised in his brief before the Supreme Judicial

Court of Massachusetts his claim that such a sub-

stitution denied him that quantum of due process

required by the Fourteenth Amendment “in that he

was put to trial without having been indicted by a

Grand Jury.” He did not refer to the Equal Protec-

tion Clause which is also a part of the Fourteenth

Amendment. But that is a nicety irrelevant to. the

maintenance.

404 U.S. at 278-79. With the conclusion of Picard stand-

ing in the face of this objection so must it stand in the

present circumstances.

Picard has not been overruled. While the Supreme

Court in the past few years has not sought to re-establish

its standards [that is, it has been cited only a few times

in passing reference], the opinion has not been criticized

by either the Court or any of the court of appeals. To the

contrary, the circuit courts have faithfully obeyed its

mandates without reservation. See e.g., Nelson v. Moore,

470 F.2d 1192, 1197 (1st Cir. 1972); United States v.

16

Zelker, 496 F.2d 991 (2nd Cir. 1974); United Staies ex

rel Hayward v. Johnson; 508 F.2d 322, 330 (8rd Cir.

1975); Saunders v. Cox, 470 F.2d 734, 736 (4th Cir.

1972); Minaffe v. Estelle, 491 F.2d 1096 (5th Cir. 1974);

Macon v. Lask, 458 F.2d 942, 948 (7th Cir. 1972); Smith

v. Wolff, 506 F.2d 556, 558 (8th Cir. 1974), Williams v.

Hocker, 463 F.2d 234, 235 (9th Cir. 1972); Ramirez v.

Rodriguez, 467 F.2d 822, 823 (10th Cir. 1972).

F. THE RULINGS OF A TRIAL COURT, AFTER

REVIEWING A DEFENDANT'S MOTIONS, ARE

NOT TAINTED WITH BIAS MERELY BECAUSE

THEY ARE THE SAME IN RESULT AS THOSE

OF A PREVIOUS JUDGE WHO WAS REMOVED.

Petitioner argues that the taint of bias, imputed from

the previously disqualified judge, must attach to the

rulings of the trial judge in this case. He alleges that

the record reveals a “hesitancy” on the part of the trial

judge to “secondguess” the chief judge of his court.

Furthermore, he argues that because Judge Reda’s rul-

ings were the same in result as rulings made by Judge

Fais who was removed, they must be erroneous.

The case of Tumey v. Ohio, 273 U.S. 510 (1927), in-

volved a trial in a mayor’s court where the mayor only

received remuneration when he convicted. The Supreme

Court concluded that such a financial interest violates

the due process rights of the defendant. Petitioner argues

that Tumey and cases decided in similar situations should

apply here. Clearly they do not. Judge Reda is an inde-

pendently elected official, with a fixed salary, answerable

only to the citizens of the community. The showing of

“hesitancy” which petitioner infers from the record does

not begin to approach the inherent bias of a pecuniary

interest. Moreover, petitioner's insinuation of bias by as-

sociation because Judge Fais is the chief judge of the

court on which Judge Reda sits, must be rejected as a

highly inappropriate assertion.

17

Petitioner relies heavily upon the probability that

Judge Reda could not have fully considered all the

motions presented to him during the time in which he

reached his decisions. This probability combined with

Judge Reda’s statement that he concurred with the rul-

ings of Judge Fais is sufficient cause for reversal of those

rulings according to petitioner.

Speculation as to the mental processes of a trial judge

has never been the standard applied when reviewing

his rulings for error. The only workable standard to

apply here is whether the rulings are clearly erroneous.

Petitioner, except for two of the rulings, does not dispute

them as matters of law. The two rulings which petitioner

does dispute were appealed and argued at length in the

Court of Appeals of Franklin County, Ohio, and are

further argued in this brief. They were clearly not er-

roneous.

The arguments which petitioner advances to illustrate

that Judge Reda’s rulings are tainted with bias are

based upon inference and conjecture. As such, their status

as a showing of a violation of petitioner’s due process

rights is dubious at best.

G. PURSUANT TO TITLE 28 USC, Section 2254

(d), THE UNITED STATES DISTRICT COURT IS

BOUND BY A FACTUAL FINDING OF A LOWER

STATE COURT WHERE SUCH A FACTUAL

FINDING IS RELEVANT TO A PROCEEDING IN

HABEAS CORPUS. THE UNITED STATES

DISTRICT COURT MUST APPLY FEDERAL

CONSTITUTIONAL PRINCIPLES TO RELEVANT

FACTUAL DETERMINATIONS IN RULING

UPON A PETITION FOR HABEAS CORPUS.

In this case the federal district court judge did accept

a factual determination by a lower state court; the judge

then applied federal constitutional principles to this

18

factual determination, and then made its ruling on the

petition for habeas corpus. Therefore, no error was com-

mitted by the United States District Court judge in this

proceeding.

The instant case is very similar to the case of Matthews

v. Wingo (1973 CA6 Ky), 474 F2d 1266, cert. den. 411

US 985, 36 LE2d 963, 93 SCt 2283, where this court ap-

proved a district court’s acceptance of a state court’s

adjudication of the petitioner’s competency.

The following facts were relied upon by the United

States District Court in the prior habeas corpus pro-

ceeding that is now before this court. During a proceed-

ing in the Franklin County Municipal Court on July 10,

1972, Judge Reda, a Franklin County Municipal Court

judge, questioned Mr. Kunstler:

I am concerned about your conduct outside the court

room. I have never met you before, Mr. Kunstler,

but I had reports about your conduct. Not only in

this jurisdiction but also in other jurisdictions out-

side the court room.

Now, do you have any statements that you would

like to make to the court with respect to what you

believe an attorney’s conduct should be outside the

court room?

Mr. Kunstler responded, in relevant part:

Surely, Your Honor, I would be glad to. Outside of

the court room I have every right to all the First

Amendment privileges of any other person. [Mr.

Kunstler then referred to Chase v Robeson, 435 F2d

1059 (7th Cir. 1970)]...They said in that case that

unless you can show by an evidentiary hearing that

there is a clear and present danger to the admin-

istration of justice, no court can bind a lawyer or

his client from speaking in a criminal matter extra-

judicial statements. This is the standard which I

19

have now adopted for myself. I think it’s the law of

the land, and I think it’s clear ...So I would never

promise Your Honor that I would not speak outside.

I will speak outside, because I think to bind me

would be unconstitutional and would make attorneys

have different First Amendment rights than any-

body else...

The above statement by Mr. Kunstler certainly fits

within criteria set out in Brown vs. Allen, 344 US 443,

at page 506, where the court stated:

““By issues of fact’ we mean to refer to what are

termed basic, primary or historical facts; facts ‘in

the sense of a recital of external events and the

credibility of their narrators’ ”.

The foregoing statement by Mr. Kunstler formed the

background of facts which lead to the conclusion by the

Court of Appeals of Franklin County, Ohio, that Mr.

Kunstler would not comply with Canon 7 of the Code of

Professional Responsibility as adopted by the Supreme

Court of Ohio. Canon 7 in pertinent part reads as follows:

“A goal of our legal system is that each party shall

have his case, criminal or civil, adjudicated by an

impartial tribunal. The attainment of this goal may

be defeated by dissemination of news or comments

which tend to influence judge or jury. Such news

or comments may prevent prospective jurors from

being impartial at the outset of the trial and may

also interfere with the obligation of jurors to base

their verdict solely upon the evidence admitted in

the trial. The release by a lawyer of out-of-court

statements regarding an anticipated or pending trial

may improperly affect the impartiality of the tri-

bunal. For these reasons, standards of permissible

and prohibited conduct of a lawyer with respect to

trial publicity have been established.”

20

The disciplinary rules specifically deal with the question

of trial publicity and DR 7-107 (B) provides as follows:

“A lawyer or law firm associated with the prosecu-

tion or defense of a criminal matter shall not, from

the time of the filing of a complaint, information, or

indictment, the issuance of an arrest warrant, or

arrest until the commencement of the trial or

disposition without trial, make or participate in

making an extrajudicial statement that a reasonable

person would expect to be disseminated by means of

public communication and that relates to:

(1) The character, reputation, or prior criminal

record (including arrests, indictments, or other

charges of crime) of the accused.

(2) The possibility of a plea of guilty to the of-

fense charged or to a lesser offense.

(3) The existence or contents of any confession,

admission, or statement given by the accused or his

refusal or failure to make a statement.

(4) The performance or results of any examina-

tions or tests or the refusal or failure of the ac-

cused to submit to examinations or tests.

(5) The identity, testimony, or credibility of a

prospective witness.

(6) Any opinion as to the guilt or innocence of

the accused, the evidence, or the merits of the case.”

DR 7-107 (B) does not preclude a lawyer during such

period from announcing:

(1) The name, age, residence, occupation, and

family status of the accused.

(2) If the accused has not been apprehended, any

information necessary to aid in his apprehension or

to warn the public of any dangers he may present.

(3) A request for assistance in obtaining evidence.

(4) The identity of the victim of the crime.

21

(5) The fact, time, and place of arrest, resistance,

pursuit, and use of weapons.

(6) The identity of investigating and arresting

officers or agencies and the length of the investiga-

tion.

(7) At the time of seizure, a description of the

physical evidence seized, other than a confession, ad-

mission, or statement.

(8) The nature, substance, or text of the charge.

(9) Quotations from or references to public rec-

ords of the court in the case.

(10) The scheduling or result of any step in the

judicial proceedings.

(11) That the accused denies the charges made

against him.”

DR 7-107 (D) deals specifically with out-of-court state-

ments during trial, and provides as follows:

“During the selection of a jury or the trial of a

criminal matter, a lawyer or law firm associated

with the prosecution or defense of a criminal matter

shall not make or participate in making an extra-

judicial statement that a reasonable person would

expect to be disseminated by means of public com-

munication and that relates to the trial, parties, or

issues in the trial or other matters that are reason-

ably likely to interfere with a fair trial, except that

he may quote from or refer without comment to

public records of the court in the case.”

Based on the statement of Mr. Kunstler and upon an

analysis of Canon 7, ‘the Court of Appeals of Franklin

County, Ohio, made the following ruling:

From Mr. Kunstler’s statement, the trial court was

justified in conclusing that Mr. Kunstler would not

comply with the standards established by Canon 7

of the Code of Professional Responsibility with re-

CFS Tee Te et OU

22

spect to out-of-court statements but, rather, would

only comply with the lesser standard of Chase [v.

Robeson, 435 F 2d 1059 (7th Cir. 1970)] as he inter-

preted that standard to be. We find Canm 7 of the

Code of Professional Responsibility, as recommend-

ed by the American Bar Association and edopted by

the Supreme Court of Ohio, to be a constitutionally

valid regulation of the conduct of attomeys with

respect to out-of-court statements concerning pend-

ing litigation. In fact, such canon would seem to be

required by Sheppard v. Maxwell, (1966) 384 US

333 . .

The factual statement made by Mr. Kunstler at the

municipal court hearing amply supports the finding of

the Court of Appeals of Franklin County. In ruling upon

the petition for a writ of habeas corpus the United States

district judge ruled that the record of the case supported

the conclusion that Mr. Kunstler would not comply with

Canon 7. The district court judge followed this finding

by a recital of pertinent federal cases dealing with right

to counsel and in page 11. of its decision made the follow-

ing finding:

“The assertion that a trial court has the unreview-

able discretion to refuse to admit, pro hac vice, a

criminal defendant’s otherwise fully qualified coun-

sel on the sole ground that he is not a member of the

bar of the court’s jurisdiction is untenable...”

It is apparent from the ruling of the United States Dis-

trict Court that he followed all procedures in a proper

manner in making the foregoing ruling. He was bound

to accept factual conclusions from lower state courts.

He did this. He was further bound to apply federal con-

stitutional standards to these factual determinations. He

did this. Therefore, it is respectfully submitted that

petitioner-appellant’s first claim of error is not well

taken.

At. Mens PE. BCE

23

CONCLUSION

Respondent respectfully submits that the petition for

a writ of certiorari should be denied, on the ground that

it is manifest that the questions om which the decision of

the cause depends are so unsubstantial as not to need

further argument. .

With the exception of the two new issues raised by the

petitioner in his petition, this total matter amounts

simply to a review for a second time by this court of pre-

cisely the same issues raised by petitioner in his appeal

during the October Term of 1973 in Case No. A-554.

The court at that time declined to hear this case and no

differences in persuasion have been offered as to why

this court should not again decline to hear this case.

Respectfully submitted,

DEPARTMENT OF Law,

City of Columbus, Ohio

JAMES J. HUGHES, JR.,

City Attorney

120 W. Gay Street

Columbus, Ohio 43215

CarRL T. WoLFRoM,

Special Counsel to the City Attorney

Suite 1111, 50 W. Broad Street

Columbus, Ohio 43215

Telephone (614) 228-3569

Counsel for Respondent.

a OL ial ie al

ee Ae

? hs PI RLTES

24

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Motion to

Affirm was duly mailed, postage prepaid, to the following

attorneys for petitioner, this@ @day of September ;

1975:

Morton Stavis

Doris PETERSON

WILLIAM M. KuNSTLER

c/o Center for Constitutional Rights

853 Broadway

New York, New York 10003

R. RayMonp TWoOuic, JR.

186 East 11th Avenue

Columbus, Ohio 43201

el for Petitioner

\.

Cart T. WoLFrrom,

Counsel for Respondent

25

APPENDIX

AFFIDAVIT

STATE OF OHIO

COUNTY OF FRANKLIN

SS

Lieutenant Thomas A. Waters, being first duly sworn,

deposes and says that on the 23rd day of April, 1972, at

approximately 8:00 p.m., affiant was present at a rally

being held for defendant Charles Ross at the steps of the

Columbus City Hall, in the City of Columbus, County of

Franklin, State of Ohio; Affiant further says that attor-

ney William M. Kunstler made he following statement

to a crowd of approximately 1,060 persons:

Judge Fais wouldn’t let Mr. Ross have a courtroom;

he wouldn’t let Mr. Ross have a lawyer; . . . You

know what I say to Judge Fais, fuck him!

THomMas A. WATERS

Sworn to and subscribed before me this 13th day of

June, 1973.

CarRL T. WoLrrom

Notary Public

for the State of Ohio